Matthews v. Ely State Prison ( 2019 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 * * * 9 IVAN LEE MATTHEWS II, Case No. 3:19-cv-00005-MMD-CLB 10 Plaintiff, ORDER 11 v. 12 ELY STATE PRISON, et al., 13 Defendants. 14 15 This action is a pro se civil rights action filed pursuant to 42 U.S.C. § 1983 by a 16 person in the custody of the Nevada Department of Corrections. On October 22, 2019, 17 the Court issued an order dismissing the complaint with leave to amend within 30 days. 18 (ECF No. 6 at 9). The time period for filing an amended complaint has now expired, and 19 Plaintiff has not filed an amended complaint or otherwise responded to the Court’s order. 20 District courts have the inherent power to control their dockets and “[i]n the 21 exercise of that power, they may impose sanctions including, where appropriate . . . 22 dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 23 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure 24 to prosecute an action, failure to obey a court order, or failure to comply with local rules. 25 See Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance 26 with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for 27 failure to comply with an order requiring amendment of complaint); Carey v. King, 856 28 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring 1 pro se plaintiffs to keep court apprised of address); Malone v. U.S. Postal Service, 833 2 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court order); Henderson 3 v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and 4 failure to comply with local rules). 5 In determining whether to dismiss an action for lack of prosecution, failure to obey 6 a court order, or failure to comply with local rules, the court must consider several factors: 7 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 8 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 9 disposition of cases on their merits; and (5) the availability of less drastic alternatives. 10 Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; 11 Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53. 12 In the instant case, the Court finds that the first two factors, the public’s interest in 13 expeditiously resolving this litigation and the Court’s interest in managing the docket, 14 weigh in favor of dismissal. The third factor, risk of prejudice to Defendants, also weighs 15 in favor of dismissal, since a presumption of injury arises from the occurrence of 16 unreasonable delay in filing a pleading ordered by the court or prosecuting an action. See 17 Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor—public policy 18 favoring disposition of cases on their merits— is greatly outweighed by the factors in favor 19 of dismissal discussed herein. Finally, a court’s warning to a party that his failure to obey 20 the court’s order will result in dismissal satisfies the “consideration of alternatives” 21 requirement. Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132-33; Henderson, 779 F.2d 22 at 1424. The Court’s order requiring Plaintiff to file an amended complaint within thirty 23 days expressly informed Plaintiff that “if Plaintiff fails to file an amended complaint curing 24 the deficiencies outlined in this order, this action shall be dismissed with prejudice for 25 failure to state a colorable claim against any Defendant and for failure to comply with Rule 26 8.” (ECF No. 6 at 10.) Thus, Plaintiff had adequate warning that dismissal would result 27 from his noncompliance with the Court’s order to file an amended complaint within 30 28 days. 1 For the foregoing reasons, it is ordered that Plaintiff's application to proceed in forma pauperis (ECF No. 4) without having to prepay the full filing fee is granted. Plaintiff 3 shall not be required to pay an initial installment fee. Nevertheless, the full filing fee shall still be due, pursuant to 28 U.S.C. § 1915, as amended by the Prisoner Litigation Reform Act. The movant herein is permitted to maintain this action to conclusion without the 6 | necessity of prepayment of fees or costs or the giving of security therefor. 7 Pursuant to 28 U.S.C. § 1915(b)(2), the Nevada Department of Corrections shall pay to the Clerk of the United States District Court, District of Nevada, 20% of the 9 | preceding month’s deposits to Plaintiff's account (lvan Lee Matthews II, #1127748), in the 10} months that the account exceeds $10.00, until the full $350.00 filing fee has been paid 11 | for this action. The Clerk of the Court is directed to send a copy of this order to the Finance 12 | Division of the Clerk’s Office. The Clerk of the Court is also directed to send a copy of this order to the attention of the Chief of Inmate Services for the Nevada Department of 14| Corrections, P.O. Box 7011, Carson City, NV 89702. 15 It is further ordered that, regardless of the success of Plaintiff's action, the full filing 16 | fee shall still be due, pursuant to 28 U.S.C. §1915, as amended by the Prisoner Litigation 17 | Reform Act. 18 It is further ordered that this action is dismissed with prejudice based on □□□□□□□□□□□ failure to file an amended complaint in compliance with this Court’s October 22, 2019 20 | order and for failure to state a claim. 21 It is further ordered that the Clerk of Court shall enter judgment accordingly and 22 close this case. 23 DATED THIS 6" day of December 2019. 24 4 ( ( 25 SIRANDA M. DU 26 CHIEF UNITED STATES DISTRICT JUDGE 27 28